Recent FOI victories: Judges reject baseless secrecy

Tuesday, August 28, 2007

Open-government advocates who see the glass as half-full likely are rejoicing over their string of victories during the last few weeks. Those who see the glass as half-empty, however, probably are just shaking their heads.

Those inclined to celebrate have reason to do so. This month, freedom of information fighters have:

  • Loosened rules on press access to California prisons.
  • Used four states’ open-records laws to obtain court-settlement documents (Maine), a sheriff’s news releases (Arizona), investigatory reports concerning an allegation of police brutality (New York) and the employment contracts of university officials (Illinois).
  • Invoked a federal law to compel the Bush administration to issue global-warming reports.
  • Persuaded a Connecticut state commission to void a policy that made it difficult for prison inmates to use the state’s freedom of information act.

Those who are more restrained, of course, also welcome these victories. At the same time, however, they rue the seductive secrecy that has crept into every level of government and now rationalizes denials of even the most basic requests for information.

Take, for example, the case of the Maricopa County, Ariz., sheriff’s office, which removed the West Valley View from its news-release distribution list because the newspaper hadn’t covered story ideas suggested by the sheriff. When the newspaper’s lawyer complained, the sheriff refused to respond, apparently taking the view that he would provide the news releases only if the paper filed a state FOIA request for each one.

Given the pettiness of the issue, one would have expected the dispute to end when the trial judge ruled the sheriff must honor the paper’s blanket request for all future news releases. Instead, however, the sheriff appealed to the Arizona Court of Appeals, which unanimously affirmed the trial court. Still unhappy, the sheriff said he would appeal to the Arizona Supreme Court.

Then there’s the case of the New York State Police, which refused to provide its reports of an incident involving a man who claimed he was beaten by a trooper outside a bar in Albany. Initially, the department said it had no records. Then it said it couldn’t find the records because the request was too vague. Then it produced some records but deleted from them the names of witnesses, claiming the release of the names would invade the witnesses’ privacy.

The person seeking the records finally sued, and the trial judge ordered the records be provided in full, criticizing the state police for playing a game of “cat and mouse” over the reports and accusing the department of “contrived procedural maneuvering designed to avoid (court) review of its decision.” The department’s legal argument was baseless, the judge said, because no evidence existed that the witnesses expected their names to be kept confidential.

A lack of merit in the government’s position is the common thread in these recent freedom of information victories.

The prison-access rules that were eased in California? They prohibited reporters from using pens, pencils and notebooks while interviewing inmates. The Connecticut policy that effectively prevented many inmates from using the state’s open-records law? It treated the $27,000 a year the state spends incarcerating each inmate as income to the inmate, which prevented inmates from qualifying for free or discounted copies of records. The argument offered to justify sealing court-settlement documents about the cleanup of a hazardous-waste site in Maine? That communications between attorneys of adverse parties should be treated as confidentially as those between attorneys and clients.

The pervasiveness of secrecy is such that government officials seemingly know no shame when it comes to denying public access to information. In Illinois, the open-records act states clearly: “The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of privacy.” Yet when a small newspaper requested the employment contracts of public university officials, the university denied the request — claiming the release would be an invasion of privacy.

In San Francisco, where litigation is pending regarding the federal government’s refusal to update the nation’s climate-change research plan and impact assessment, the Bush administration claimed the law allowed it discretion over how and when to produce the reports. The federal judge soundly rejected that argument, stating the statute clearly does not allow any such discretion.

The good news, of course, is that judges and others are rejecting baseless attempts to deny the public access to important government information. Even when rejected, though, these attempts create legal and practical obstacles that increase costs, extend delays and discourage citizens from seeking information to which they are entitled.

However nice these recent victories might be, it would be even nicer if there were fewer battles.

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